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In the Shadow of Cairngorm
XVI. In the Days of the Baron Bailies


It is hard to form a right judgment of the public characters and events of the present day. Ignorance, prejudice, and other things are against us, and however much we try to be fair, we may fall into mistakes and injustices. Even with the daily newspapers to help us, we are often perplexed, for, though they should agree as to the facts, which is far from being always the case, they may differ widely as to the interpretation to be put upon them. If this be true of the present, we need not wonder if our difficulties are vastly increased, when we have to deal with the past, especially the far past. Here the light is dimmer, the path is more uncertain, and such guides as present themselves are not always or altogether to be trusted. The Days of the Baron Bailies in our parish may be said to extend from 1694, when the Regality of Grant was erected by Royal Charter (28th February), to 1748, when the Regality Courts were abolished. As to the character of these times, we have first of all the general testimony of history. Burton says that (1698-1748) "the Scottish Bench had been profligate and subservient to the utmost conceivable extent." If this was the case in the high places, what could have been expected in the lower Courts? Burt says (Vol. II., 149, Jamieson’s Edition), "The heritable power of Pit and Gallows, as they call it, which still is exercised by some within their proper districts, is, I think, too much for any particular subject to be entrusted with." He then shews how it may lead to "injustice and oppression, through the ‘partiality’ of the Chief and ‘the private resentment of the baily.'" He had been often told, for he had not been accustomed to attend these Courts himself, of one Bailie in particular, who seldom examined any ‘but with raging words and rancour (a very Jeffreys), and if the answers made are not to his mind, he contradicts them by blows, and one time even to the knocking down of the poor wretch who was examined." As to the pride of the Bailies, Burt says—--"When he travels, in time of snow, the inhabitants of one village must walk before him to make a path to the next, and so on to the end of his progress; and in a dark night they light him from one inhabited place to another, which are mostly distant, by carrying blazing sticks of fir." Then we have the evidence of tradition. No doubt tradition is not to be depended upon, but it certainly gives the impression made upon the mind of the people, and it must be taken into account in forming our judgment of the times. In this parish there are several places connected with the doings of the Bailies. There is the Drowning Pool, at Balliemore, where, it is said, witches and other women criminals used to be put to death. Then there is the Gallows Tree near Lynstock. This venerable fir still stands, though it must be over 300 years old. At a height of 12 feet from the ground there is a strong projecting bough, and it is said that it was from it the fatal cord or wuddie was hung. There are marks of graves at the foot of the tree, tradition says of two brothers, as stated by the Rev. Mr Grant, and therefore the tree is sometimes called "The Tree of the Brothers." But it is said that the usual place of interment was in a plot of ground opposite the Causair Smithy, where bones have been found. Another hanging place was at Tom-a-throchair, Hangman’s Hill, which may have been used when the Courts sat at Rothiemoon, where there was a Toll-dhubh, Black Hole, or prison, the hearthstone of which is still to the fore. Other traditions exist connected with Achernack and Congash. Then we have with regard to our parish two very important sources of information, one largely incorporating tradition, and the other dealing with facts, viz., the Old Statistical Account (1793), by the Rev. John Grant, and the Court Books of the Regality of Grant, in five volumes (1690-1729),. preserved in the Record Office, Edinburgh.

The Galkows Tree

Before quoting Mr Grant, it may be well to consider how far he was a competent witness. Mr Grant, as stated in Chapter XI., was a native of Duthil, and born in 1739. His father, who died in 1795 aged 86, was of the old family of Milton, and his grandfather or great-grandfather appears to have himself acted as a Bailie (1704). Mr Grant would have been able therefore to obtain information at first hand. Then Mr Grant was settled at Abernethy in 1765, only 17 years after the abolition of the Regality Courts, and there must have been many people then alive who could speak from their own knowledge of the Bailies and their doings. Besides, Mr Grant was minister of the parish for 56 years, and during that time he had ample opportunity for enquiry and examination. It has been endeavoured by Dr Scott of the Fasti and others to impugn Mr Grant’s veracity and trustworthiness. It has been said that he was Chaplain of the 97th Regiment, and that having several sons in the army during the Peninsular War, he was in the habit of reading the newspapers to his congregation when anything of importance occurred regarding the progress of events and so on. There is in this a mixture of truth and error. Mr Grant was for some time Chaplain of the 97th Regiment, and the report that he at times read extracts from the newspapers in Church is no doubt, correct, but he had no sons in the army during the Peninsular War. The two sons of his in the service were Peter, Captain in the H.E. Indian Company, who died in 1810, and George, in the Bombay Infantry, who died in 1819. Mr Grant may have been a poor preacher, and rather of the type of minister common at that time, both in England and Scotland, described by Wordsworth:—"He was often the patriarch of his parish, its ruler, its doctor, its lawyer, its magistrate, as well as its teacher, before whom vice trembled, and rebellion dared not shew itself. The idea of the priest was not quite forgotten, but there was much, much even of what was good and useful, to obscure it. The beauty of the English Church in this time was its family life of purity and simplicity: its blot was quiet worldliness" (River Duddon). But whatever view be taken of Mr Grant’s statements, and although some of them may be regarded as exaggerated or even incredible, we are bound to give him the credit of sincerity and of courageous utterance of what he believed to be truth. With respect to the rapacity of some of the Bailies, for no doubt there were good and bad men amongst them, and some may have from greed and malice greatly abused their power, Mr Grant is supported by Mr Lorimer. In his MS. Notes, 1762, he says:—"The Baillie had the escheat or the whole goods of the person condemned, and as the Laird of Grant took none of the fines nor escheat, his Baillie Knockando laid the foundation of his fortune by suck means." In another place he says that Delrachney’s father was Lord of Strathspey for 40 years, that he made as much money as to be able to lend the Laird 22,000 merks. He also got an advantageous wadsett and a tack of Inverladnan for 76 years. Altogether he and his father are said to have made 3000 or 4000 by the family. With these preliminary remarks, we give Mr Grant’s account, and some extracts from the Regality Books, leaving our readers to form their own opinions:—

"We will mention the blessings we enjoy by the abolition of the Jurisdiction Act of 1748. That delegation of feudal power was dangerous in the extreme, because it was generally abused. When we consult the traditional history of the country for a century and upwards past, and the extraordinary conduct of some of these despots, the bailies of regality, and the precariousness of life and property, often within their jurisdiction, one is excited to grasp with fondness the government that has annihilated their dangerous power. They often punished crimes by committing greater ones themselves. They often, no doubt, tried by jury, but some of them at other times in a summary, arbitrary, and extraordinary manner. A few instances will be enough to mention in case the reader should imagine that these things were lately done in Tippoo Sultan’s dominions. One of them lived in this parish named Robert Grant, commonly called Bailie More. It is said he used to hang people for disobliging him. He seldom called juries. He hanged two brothers on a tree within 1000 yards of this town, and buried both in one grave on the roadside. The grave and stones above it are still visible. Another, named James Grant, commonly called Bailie Roy. who lived long in this parish, hanged a man of the name of Steuart, and after hanging him set a jury on him and found him guilty. The particulars are too long to be inserted here. The bailie had many reasons for being in such a hurry. The man was, unluckily for him, wealthy, and abounded in cattle, horses, sheep, and goats, all of which were instantly driven to the Bailie’s home. Steuart’s children set a-begging, and his wife became deranged in her mind and was afterwards drowned in a river. It is not very long since. This same Bailie Roy, on another occasion, hanged two notorious thieves, parboiled their heads, and set them up in spikes afterwards. At another time he drowned two men in sacks at the Bridge of Billiemore, within a few hundred yards of this manse, and endeavoured to compel a man from Glenmore, in the barony of Kincardine, to assist him and the executors he had with him in the business, which the man refusing to do, the Bailie said to him—’If you was within my regality I would teach you better manners than to disobey my commands.’ This Bailie bought a good estate. There was another of them, called Bailie Bain, in this country, who became so odious that the country people drowned him in Spey, near the church of Inverallan, about two miles from hence. They took off his boots and gloves, left them on the bank, and drove his horse through a rugged place full of large stones. The track in the sand, boots, &c., discovered what had become of him, and when a search had been made for him down the river a man met the party near the church of Cromdale, who asked them what they were searching for. They answered, ‘For the bailie’s body,’ upon which he said, ‘Turn back, turn back, perhaps he has gone up against the river, for he was always acting against nature.’ As their power was great and generally abused, so many of them enriched themselves. They had many ways of making money for themselves, such as (1) the bailie’s darak, as it was called, or a day’s labour in the year from every tenant on the estate; (2) confiscations, as they generally seized on all the goods and effects of such as suffered capitally; (3) all fines for killing game, blackfish, or cutting green wood were laid on by themselves, and went into their own pockets. These fines amounted to what they pleased almost. (4) Another very lucrative perquisite they had was what was called the Herial Horse, which was the best horse, cow, ox, or other article which any tenant on the estate possessed at the time of his death. This was taken from the widow and children for the bailie, at the time they had most need of assistance. This amounted to a great deal on a large estate. This practice was abolished by the late Sir Ludovick Grant in this country in the year 1738."

 

The following extracts from the Court Books of the Regality of Grant are mainly taken from a pamphlet by Wm. Cramond, LL.D., F.S.A., Cullen:—

"Followes the courtis and actis, sentences and process of the Right Honoll. Ludovick Grant of that ilk holdine be L. Collonell Patrick Grant, Tutor of Grant, his baylie, be vertue of his comissione and letter of Bayliarie efter mentioned. Court of the paroshine and Lordship of Abernethie holdine at Culnakyll, the 2nd of January 1690, be the tutor of Grant, Baylie; David Blair, notar and clerk; John Maktourich, officer; and Grigor Grant in Abernethi, procurator phiscall. Suits called, curia legitime affirmata. The said Bailie did elect and charge David Blair, notar publict, to be clerk to the said Court, who gave his oath de fideli, and did continue said John Maktourich, officer, and said Grigor Grant, procurator phiscali, they being creat members of court befor the preceding baylie. The said bailie presented his commission of bailiarie.

"Stealing Cows—2nd January 1690.—Allaster Bayne, in Bellifurth, guilty of stealing or at least concealing of the cowes pertaining to John Grant, alias Makallaster Vickandro, in Cromdall. Unlawed in 50 lib.

"Stealing Sheep.—David Makallaster, in Glenlochie, pursued at the instance of Alexander Grant, in Burnside of Cromdale, for reparation of three wedders. He was found guilty as after a heastie daker Alexander Grant found in the defender’s house ane fresh mutton bouk, and the defender would not produce hyd and heid. To pay 9 Sc. for said wedders with his tasquill and expenses, and to pay 50 Sc. of unlaw to the fiscall.

"Sheep.stealing, &c.—John Grant and Donald Macgressack, in Comgrass, unlawed in 50 lib. the peice for theft for stealing from John Maknokater, in Glenlockie, five heid of sheip. Thomas Troup, in Tullich, 50 lib. for striking and blooding of William Grant. John Mulloch, in Comgrass, 50 lib. for theft from Allaster Fraser. James Murray, in Achernach, 50 lib. for stealing two wedders from John Gow, in Cromdaill.

"3rd January 1690—Stealing Wool.—Duncan Roy, in Garthinmor, against Helen Taylor for stealing of ane seakfull of wooll that he had hid in the tyme the Highland army went down Speyside. It weighed 4 stone. She is ordained to pay it at 14 merks the stone, also tasquill money and 50 lib. of unlaw.

"Breach of Arrestment—27th November 1690.—Findlay Beg Fraser, in Tulloch unlawed 10 lib. for breach of arrest.

"Stealing Plough lrons.—Donald Makrobie and John Makulister, big, in Tulloch, 50 lib. each for stealing of pleugh irons.

"Recipting Stolen Wool.—William Macandachie, moir, his wiff in Lyngarrow, 20 lib. for receipting of wool from her dochter, stolen by her from Duncan Roy, in Gartenmore.

"Selling Wood—5th January 1690.—Thomas Mackenzie, in Culenakyll, 50 lib. for medling with the Laird of Grants woods and selling thereof without warrand.

"Payment of Rents.—The haill wadsetters, tacksmen, and tenants of the parishes of Abernethie, &c., to pay the duties, kaynes, customes, and casualties due to Ludovick Grant of that ilk for crop 1691.

"Court of the parishine and Lordship of Abernethie holdin at Culenakyle, 25th November 1691.

"Assaults.—Alexander Grant in Culdorach fined 50 lib. for beating and blooding of James Bayne. James Cruishank, maltman in Ballachastell, convict in 50 lib. for beating and abusing James Cassiles in Achabrondach and his wife within ther own hous in silence of night, also 50 lib. for beatting and abusing James Sheid and his man, who lodged in the said Cassiles’ hous.

"A raid on Deeside.—An action by the Laird of Monaltrie against Allaster Mak-grigor, vig., and Thomas Gedderer and John Mackschall in Clachey, &e., for reparation of eight sheep or 40s, the piece of the remainder of ane greater number stolen be the said tenants from James M'Kphersone, in Monaltrie, his man, upon the month of December 1690. The bailie ordains them to pay the sums demanded.

"Stealing Socks.Donald Roy Fraser, aged 16 or 17, stole a sock from Issobell Grant in Belimore, also a sock from Achernickes pleugh. An assize of fifteen persons held, all surnamed Grant, namely, Patrick Grant of Tulochgorame, William Grant of Lurg, Grigor Grant of Gartinmore, Duncan Grant of Mullochard, John Grant of Dell, Duncan Grant of Letoch. [The others are in not of So-and-so.] The assize finds him guilty, and refer him to the bailie, who ordains that the said pannell his lug be nailed with ane irone naill to ane post, and to stand there for the space of ane hour with entymatione, and then alowes him to break the grip nailed without drawing of the naill, and this he gives for doome, and lykways unlawes Patrick Grant, in Curr, his maister, in 50 lib. for recepting of the sock.

"Stealing a Horse, 11th December 1693.—John Stewart, roy, in Achnaconan fined 50 for stealing of Glengarik’s horse, confest it was ill counsull caused him doe it.

"Lugs nailed for Burning Heather.—(James Grant of Gelloway, bailie.) Alexander Gardner, alias Murray, Patrick John Dow, milart, his son, Patrick Barron, son to David Barron accused for burning heather adjacent to the backside of the Craigmore of Abernethie, whereby much fir wood was burned. An assize sat on them. They are ordained to be taken to the gallows of the moor of Belintomb and their lugs nailed to the said gallows.

"Wages fixed by the Court, 13th November 1696.—Na man to give or any workman to receive for his wages a day mor than 2s of money or ane hadish of meal.

"A Man and his Daughter scourged at the Gallow Tree for Theft.—Patrick Bayn in Rienacleych and his dochter convict of theft. His friends became security for his good conduct for three years, and, that be at the close thereof, appear in court. Bailie Grant (of Gelloway) ordains him to be taken immediately from the court to the gallow foot upon the moor of Belintome and tyed thereto be the executioner with hemp cords and his bodie maid naked from the belt upward and then to be scourged by the said executioner with ane scourge by laying upon his body 24 strypes to the effusion of his blood and then to be lowsed and let go, and Margaret Bayn, his dochter, shall be also taken forth to the gallow foot and tyed thereto immediately by the said executioner with hemp cord and her body made naked from the weast upward and then to be scourged with thratie (?) strypes be the hand of the executioner till her blood run downe and then to banish the said Margaret from Strathspey not to return under pain of death.

"Three Men Hanged for Stealing Cows and Sheep—2nd September 1697.—For stealing cows and sheep Gilanders MackGilanders, Thomas Mackienloch Innes, his man, and Donald Mackrobie, to be carried to the pit of Castle Grant, there to remain till Tuesday next the 7th inst., and upon said Tuesday morning to be brought to the Gallowhill of Bellintome, and all three hanged upon the gallows of Bellintome betuix two and four in the afternoon till they be dead, and decerns Gregor Dow to be bound to the gallows the time of their execution, and to have his left ear cut off and to be scourged and banished.

"Two Thieves Hanged—17th August 1698.—John Barron, son to David Barron in Abernethie, broke the house of John Fraser, stole his cheese, and committed other thefts. William M’Candachie, taylior, commone theiff, sorner and vagabond. An assize find both guilty, that they are common thieves and have been trading in theft a long time bygane, and can find no suretie. Both to be hanged on the 20th August on the hill of Bellintome.

"Hunting with the Halkit Steir.—Margaret Bayn, dochter to Patrick Bayn, sometime in Inchstomach, brought from the prison at Castle Grant, as she who was apprehended within Strathspey for several delinquencies, especially for haunting with the Halkit Steir and Glendry broken men and Keithren. To be brought to the Regality Cross at Grantown to-morrow, 14th inst., and bound thereto, and her bodie maid bear from the belt upward, and scourged by the hangman with thratie strypes and ane of her ears cutt off, and she to be then banished out of Strathspey for ever.

"Aquavitae to be brewed and served to the district—June 1703. —All the tenants to carry their bear for malt to the malt kiln at Castle Grant, and to get 8 merks for it each boll, to be sold at 16d. the pynt. None to import malt out of any place but the four parishes. No aquavitie to be imported to the four parishes, and the brewers to brew aqvavitie of the country malt, and to serve the four parishes at reasonable rates.

"Court of the lands and lordship of Abernethie held at Culenakyll 9th March 1704 by William Grant of Lurg, bailie of the said lordship.

"Tailors' and Wrights’ Wages fixed.—It is statut by the bailie, with consent of the gentlemen of the country, that the day’s wages of tailors shall be from 4s the best tradesmen and the meaner for 2s Sc. and their meat, and 5s a day to the best country wright, and the transgressors to pay 5 of unlaw, both giver and receiver.

"Assaulting a Women .—Donald Dow in Bellamor unlawed 10 for striking and blooding Elspet Grant in Lettoch.

"Assaulting a Man.—Patrick Grant in Badiniden unlawed in 40s for striking Donald Roy, taylor in Bellamor.

"A rendevous in Highland garb.—Court of the lands of Tulchane Skeiradvey, holdin at Delay 27th July 1704. By order of the Laird of Grant, yr., the bailie ordains the haill tenants, malenders, tradesmen, and servants within the said lands that are fencible men shall provide, and have in readiness against 8th August, ilk ane of them, Highland coats, trewes, and short hose of tartan of red and green set bread springed, and also with gun, sword, pistol, and durk, and with these present themselves to ane rendevouze when called upon 48 hours advertisement within the country of Strathspey, for the said Laird of Grant or his father, their hosting and hunting under failie of 20 Sc., ilk ane, and the maister to outrig ther servants in the said coats, trewes, and that out of their fies.

"Ilk ane to his own Shealing—30th May 1706.—ilk tenant to keep their own glen in due time of the year under failie of 5 and all in the glens shall hest in inbringing ther beasts to ther own proper shealings ilk nicht and nocht wrong ther neighbour’s shealing or particular pastur.

"Breach of Sabbath—20th November 1706.—John Stewart Roy in Comgess fined 20 for bargaining upon the Sabbath Day. 20s Sc. to be given for ilk fox killed.

"Equivalent of Customs—25th April 1711.—Ilk two-year-old custom wedder to be rentalled at 2 3s 4d Sc.; one-year-old wedder, 30s; ilk custom goose, 10s Sc. ; hen, 2s 6d Sc. ; ilk pultrie, 18d Sc. ; stone of brew tallow, 3 Sc., &c. Coble bear also to be paid by those lyable.

"School Meal.—The school meale of Duthel is a peck of victuall ilk 18 pairt betuix Yuill and Candlemas yearly, and the payment to be to the respective millards of the several millis. Four constables appointed for Duthil parish to see to carry out the acts anent grinding and shealling, and five constables for the Lordship of Abernethy. For the schoolmaster of Abernethy, all to pay a peck the auchten pairt, the milvards to collect it and to be comptable to the schoolmaster for payment of half a boll meal.

"Foxes and Eagles. —Payment to be made for ilk fox killed 40s Sc. ; ilk young fox, 20s; every eagle, 20s. Ilk 1-18th part of land to pay 13s 4d, and ilk rnellander 6s 8d as a fund.

"Peeling Trees—16th July, 1714.—No peeling of growing birk trees to be allowed.

Price of 14 pynts aqwavite at 16s, ane barrell of syse 10 pyntes, price 20s, awl ane drinking horne at 4s.

"Moor Burning.—None to take upone hand to make any moor burn in hill or deall, moss or muir, efter the 1st March until the cornes be shorne under the penalties contained in the Act of Parliament.

"Unringed Swine.—Unringed swine straying to be killed. and no scabbed horses to be permitted to go about.

"James Grant, in Riemore, late forester of the woods of Abernethie, fined 100 Sc. for breach of trust in not delivering up to the Laird of Grant money for wood sold to the people.

"Killing Kipper Fish—20th October 1722.—Wm. Duncan, one of the sawmillers of Abernethie, and Alexander Cuming, one of the Englishmen’s servants, at Culnakyll, being taken two days ago killing kipper fish, are fined 50 Sc. each. Several tenants of Belintomb and Allachy fined 3 Sc. each for cutting wood, &c.

"Stealing of Fir, Birch, and Fruit Trees, and Lime.—Petition by the Hon. James Grant of Grant, that the fir woods in Abernethie and Glencherneck are dayly cutt stollen, aud carried away by tenants in Strathspey without any warrand, and that the birk woods are wholly destroyed by peiling of the bark thereof at their pleasure, and leaving of the timber peiled standing rotting in the woods, and against the breaking of orchards, gardens, destroying of fruit trees and stealing of fruit, and against stealing lime from the lime kiln and house of Castle Grant by night and by day, and anent the great hurt and prejudice done to the fir woods of Strathspey by cutting and destroying standing trees for to be candle fir to all the inhabitants. Also that all bear to be malt ought to be sent to the malt kiln of Castle Grant. The petition is granted. Penalty for stealing lime—1st fault 10 Sc., 2nd fault 20 Sc., 3rd fault, scourging. For stealing wood—To pay the value also, 10 for the first, 20 for the second, and 40 for the third fault, and if not, responsall for payment to be imprisoned 8, 15, or 30 days for the first, second, and third faults, and to live upon bread and water during the said space, and at the end of said month to be scourged. All conform to Act of Parliament, and the willfull contraveners of the said Acts, and destroyers and cutters of growing woods shall be punished thereafter to death as thieves.

"An ablach Sheep—December 3rd 1725.—Alexander Grant in Dul presented in court ane wedder’s skin and head found by dackering in the house of John Roy in Badenaden. He said it belonged to himself in respect he found it as ane ablach beside the fir wood, 6th December. James Grant of Auchnakyle is become cautioner and surety for John Roy in Badenaden, now in the pitt of Castle Grant, for the alleged theft of wedders, under the penalty of 500 merks.

"Killing Deer—9th December.—Roderick M’Kenzie, servitor to Gregor Grant yr. of Gartenmore, confessed that he shot a deer in the laird of Grant’s forestry, and brought it to his master’s house, that he killed a roe in the same place and a deer in the Duke of Gordon’s forest. He and his master are fined 50 Sc. each.

"Receipt of Theft.—William M’Culloch in Cunakyle unlawed 50 Sc. for receipt of spoilzied goods taken from Duncan Grant, Cullnafey, and another 50 Sc. for eating and recepting kipper fish in forbidden time.

"Sheep destroyed by Foxes and Eagles. —The gentlemen tennants and others in the regality of Strathspey represent they sustain continual and daily losses by the foxes and eagles killing their sheep, and entreat the judges to fall on proper methods for preventing said damages by stenting a fund on all the country people, and by offering rewards for those destroyed, therefore in April and May next the gentlemen and tenants in the four parishes of Strathspey shall pay a sufficient year-old wedder or 2s stg., and each melander [cottar] that has sheep ane sufficient lamb or 12s Sc For a fox or eagle killed 2 Sc. each to be paid.

"A Mill Removed—31st July 1728.—The mill of the Braes of Abernethy to be transported to Clachag."


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